Guest post: Nipping It in the Bud

3 September 2015

This is a guest post by Ralph de Kanter. It’s about just one frustrating aspect of the business of attempting to tackle bad driving: the Notice of Intended Prosecution.

Over to Ralph to share his experience of how this works out in practice, from the point of view of a road user at risk from others’ bad driving. (Feel free to share your own experiences in the comments.)

Introducing the NIP

For those who aren’t aware, there is a piece of legislation governing “minor” traffic offences such as careless driving, dangerous driving and speeding. It basically says that the police have 14 days after the event occurs to issue a Notice of Intended Prosecution (NIP), and that if this is not done then the offence can no longer be prosecuted.

Fourteen days. Does this seem like a realistic time period? Can the police really turn things around in such a short period of time, or is this a de facto way of letting drivers get away with dangerous behaviour?

As it happens, I was unfortunate enough to experience a very unpleasant woman behind the wheel of a car on my commute to work a few weeks ago, during which I was subjected to:

A dangerous overtake (my perspective is that this most likely resulted from ignorance or carelessness on behalf of the driver)

Being driven at repeatedly and forced to the gutter

Being shouted and sworn at

This, I figured, was a suitable test case to see whether the NIP is reasonable and whether the system is really set up to operate under such a restriction. Not only did I come to the conclusion that the answer is “no” in both cases, but it appears to me that the system is specifically set up to take advantage of this law to avoid needing to prosecute dangerous drivers.

Here’s my experience of the hurdles you need to overcome to try and get the police to do anything.

Hurdle 1: Was it “dangerous enough”?

Thursday 16 July. 14 days to the deadline.

This sounds bad, but I don’t think I’d be alone in saying that I experience so many inconsiderate passes that they generally don’t phase me any more. That’s right, general driving behaviour is so poor that it needs to pass quite a high bar to now count as dangerous enough to be worth reporting.

Having said that, in this instance I felt that the lady definitely crossed the line and, armed with camera footage, I contacted Surrey Police via their helpful web form and filled in all the relevant details. Nice and easy so far.

Hurdle 2: The report goes to the wrong place

Friday 17 July. 13 days to the deadline.

To Surrey Police’s credit, the submission was responded to promptly but it turns out that the web form doesn’t go to the traffic unit and ultimately just leads to you being asked to fill in an “allegation of bad driving” form, which asks for all the same details a second time. They also post this form to you by default, even though you started the process in an electronic medium.

Nice try, but it’s coming up to the weekend and I don’t want to lose several days in the postal system. I replied to the email and asked that they send me the form electronically instead.

Hurdle 3: The directions given for submitting the actual paperwork wastes time

Feeling pleased at having completed the correct paperwork and not being several days down already, the next step was to get it back to the police. The allegation of bad driving form requests that you return the form by either:

handing it in to a police station (inconvenient: I don’t live in Surrey and this would cost me time)

returning the form by post (runs down more time on the clock, especially with the weekend coming up)

email*

Aha: email, nice and simple! But wait, what’s that asterisk doing there? Turns out if you email the form you still need to post a paper copy, but what they don’t say is that it’s because they need a signature to be legally acceptable. In 2015 it really should suggest emailing a scanned copy bearing my signature to save time and make the process easier.

Several more days saved by not using the postal system, though, so I guess I’m doing well at this point.

Hurdle 4: Inability to use YouTube means physical media needs to be sent

Saturday 18 July. 12 days to the deadline.

Again, to Surrey Police’s credit, I got a reasonably quick response to my email the next morning, but I was fairly dismayed at the contents.

I was told that they weren’t set up to view YouTube and that I needed to send a DVD in the post for them to view. That’s right: no YouTube, no cloud hosting, no large emails and no social media, apparently for “security reasons”.

Now, I don’t know about you, but I haven’t stocked DVDs since memory sticks came out last decade. Fortunately, after a little complaining I was told that they will accept (and return) memory sticks, which is laughable as plugging in a foreign stick is pretty much number one on the list of security no-nos: far more dangerous than accessing YouTube. Again, it’s a pretty unacceptable position for 2015.

Unfortunately I was away at the weekend, so posting would have to wait until Monday, at which point I sent it recorded 1st class to ensure that it arrived promptly and didn’t “go missing” along the way. As it happened, it didn’t arrive until Wednesday (thanks a lot, Royal Mail).

Hurdle 5: Getting to the top of the pile

Thursday 23 July. 7 days to the deadline.

So my memory stick finally gets picked up and I’m called by an officer to confirm that they have it. I think at this point they do some basic paperwork, but they don’t consider the case and it goes into the backlog.

So, 7 days down and it’s only just made it into the backlog. Considering I avoided two trips through the post I figure I’m doing well, as it easily could have been most of the 14 days by now. 7 days should surely be enough to get reviewed, right?

Hurdle 6: Police apathy when it finally gets picked up

Thursday 30 July. Deadline day.

It’s final day that a NIP can be sent and—hurrah!—my report has finally made it to the top of the pile. I receive an email in my inbox stating that the officer in question had “concerns regarding my actions prior to the incident”, followed by some weak, ill-informed comments on my roadcraft. For this reason, he is refusing to proceed with the case.

Going into the full reasoning given and why I think it’s hogwash is probably worth keeping to a separate post, so for now I’ll leave you to make your own mind up about whether I was riding particularly carelessly or dangerously by showing you the longer footage.

Next I’ll ask you: Should it matter that some possible, borderline transgression on my part, that was fully independent of the vehicle in the incident, should make a difference to whether the driver should be prosecuted? Would the police refuse to follow up on a stolen car because the owner had parked it illegally? Would they refuse to punish a man for GBH because the victim had previously shouted some bad words at a third party? I think not.

Hurdle 7: Video evidence allegedly can’t be used

I wrote back to refute the accusation that I was riding dangerously and to say that in any case this should be irrelevant given it had nothing to do with the actual incident. I wasn’t sure I’d get a response any time soon, but I was called by the officer later on in the afternoon, when he said that he had reviewed the footage again with his manager and they had agreed again that it wasn’t a strong enough a case to put forward.

This time though, the reasoning was different. I was told that the video was not independent and that without a separate witness the case would never be strong enough.

Hurdle 8: No time for appeals

I felt fairly strongly that this position was unsound, but after half an hour on the phone with the officer it was clear that he wasn’t going to change his mind about not sending the case to the CPS. With no one else to contact and this being the final day a NIP could be issued, there was no time to go via another channel, so this was effectively it for me.

Conclusion

I can only conclude that the NIP system is obstructive and merely serves to protect drivers that shouldn’t be protected. The police seem to have placed multiple further hindrances in their processes and, even with me short-cutting several of them, I only just managed to get my case reviewed in time.

Couple this with a lack of willing to tackle this sort of behaviour from the police and it basically means you are free to drive how you please—just make sure you don’t get spotted by the police themselves—and just as long as you don’t collide with cyclists, drive as close to them as you like.

Technically, a NIP must be served in order to prosecute any offence in the Road Traffic Offenders Act 1988 (RTOA1988); this is defined in the same act. However, there are exceptions: where a collision occurs, where a fixed penalty notice (FPN) is issued, where the offender’s details could not reasonably obtained in time, or where the offender has obstructed the obtaining of them.

I have struggled to find any documented reasoning behind the inclusion of the NIP in the RTOA1988. Feel free to speculate as to why this act includes such a provision, yet no others do.

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Comments

We all have Members of Parliament. Write to them to question the need for the 14 days and ask them how many NIPs for traffic offences have been issued in their constituencies and what for. After all it is a far more serious offence to enter a bus lane than endanger a fellow road users life.

Yeah he does ride like a bit of a dick at times, though as he says that is unrelated to the dangerous driving incident. Maybe shows that we should all ride a bit better if we want to be taken more seriously?

Who is this ‘We’ that you speak of? I don’t expect people to judge my driving based on the make of my car so why should the behaviour (good or bad) of other cyclists affect how other road users treat me?

I took Steve’s comment to be not a group pronoun but a plural. That is, not that your riding reflects on me and vice versa, but that each of us as individuals should make sure our riding is up to scratch if we wish police etc to take our complaints seriously. The more serious question IMO is who sets those standards and how.

“We” are not a homogenous group. Cyclists are a bunch of people who happen to use the same mode of transport. “We” are all individuals. If that is how you think (really, rather than just trolling) – that each invidual traveller carries collective responsibility for the actions of those who use the same mode of transport – then all motorists should be too ashamed to ever set foot out the door.

I spoke to several police officers on the day and several more via Twitter the following weekend (mix of BTP and Met, all local to Camden/St Pancras), who all urged me to log the incident on the Roadsafe London website, saying that was where the Met would pick up the incident to investigate and, if appropriate, issue a NIP. I did that, then chased and chased and never heard anything from anyone.

Formal requests for CCTV footage from Netrail at St Pancras station likewise produced absolutely nothing.

A few people suggested I also report my experience to the Near Miss Project but when I went to that website I found I would have to orally give my report into a microphone (which I do not have on my PC) to produce a sound file of some kind. No way did I want to talk about it aloud.

Of course there will be a ‘reasonableness test’, and you will have to describe yourself, and be very precise in terms of place and time. Each CCTV owner will have their own rules.
If other people are shown in the footage, the CCTV owner might resist disclosure, to protect their privacy/data. Might ‘redact’ or blur to anonymize, but that costs !

I recently saw a response ‘we only release CCTV of you if you have been killed’ which seems ‘too late’, in a Kafka-esque way.

I wonder if refusal has ever been challenged by the Information Commissioner ?
May be ‘toothless’ – most legal stuff is ultimately a fruitless waste of time and money – only to be undertaken if you never get frustrated or, ideally, enjoy that sort of thing.

Glad to see you’re still out and about – I tend only to emerge after midnight, when the roads are empty !

I think that approaching your MP is the next step to escalate this. Such bad driving should not be tolerated. At least with the camera footage they were obliged to have a look. I gave up reporting near misses as so little was ever done. I now have a Fly6 but thankfully have not had any near misses since I bought it.

On a more general note, the police are only as good as the individual you are dealing with. Some are interested, others are not.

Is there a move, a campaign or even a petition to repeal this provision of the Act? My MP is busy, probably sympathetic, but AFAIK unlikely to lead on this issue. I would prefer to ask her to turn up and cast her vote.

Regarding Hurdle 6 – “…concerns regarding my actions prior to the incident”. Erm – I looked at the longer video and I’m damned if I can see what was wrong. Did the police go into any more detail on what was bad riding?

Went to squeeze past a car at a pedestrian refuge while someone was crossing, thankfully stopped, but the intention to pass was clear. Then overtook on the central chevrons, which in my opinion do not mean “cycle lane” but are intended not to be driven/ridden in? Might be wrong about that. If a car had come towards him on those chevrons I guess that’s fair game if it’s just considered “extra road space”??

But I regularly get overtaken by motor vehicles using those chevronned areas. Didn’t realise that they’re the road equivalent of the Romulan Neutral Zone- I stand corrected (and admit that I filter using them all the time…)

Beats me exactly what they’re for tbh, they’re one of the most abused markings on the road. My route to work has an 18-24″ wide chevron down its entire length which, if cars seek to avoid driving on it, pushes the traffic nearer to the kerb. Not good at all, really.

I was interested to know which part of the video you thought demonstrated ‘riding like a dick at times’.

The pedestrian was on the other carriageway before I passed the refuge and you forget that the camera is mounted below the handlebars – my head is much higher and could see the pedestrian over the top of the car in front, not to mention before he had even set foot into the road. I also slowed right down to an appropriate speed.

As for the hatched area – it is bounded by a broken white line which means you can enter them if it is ‘necessary and you can see that it is safe to do so’. Clearly the latter is true, the necessary bit is obviously a grey area. My view is that it was necessary for me to make a safe pass and I am regularly passed by cars doing exactly the same. It isn’t dangerous to do so and allows everyone (car or bike) to make progress without being unnecessarily held up.

If a hatched area is bounded by an unbroken white line then it must not be entered except in an emergency. Hatched areas are used to separate opposing flows of traffic and guide cars around junctions e.g. to protect traffic turning right at junctions, to show that a central traffic island or the start of a dual carriageway is approaching, help cars filter through a bottleneck etc.

I don’t claim to be perfect – as I said, using the hatched area is a grey area (albeit one used by people every day regardless of mode of transport) – but I would refute that I am actively dickish in the way I was riding.

my daughter failed her driving test because she didn’t overtake a stationary bus when she could have. There was a broken line hatched area alongside the bus and she failed to use it… The examiner believed she could have easily overtaken the bus in safety.

Personally I would prefer cars to kake use of this when passing me, rather than stubbornly stick within the lines resulting in a close pass. The intent of the hatching and islands is to reduce lane width and so theoretically reduce driver speed. The unintended consequence is an increase in close passes.

The really sad part of this is not so much the tight time to make a decision. It’s the way it allows an officer to make a bad or prejudiced judgement and then allows them to say “sorry mate, you’re too late.” Most victims will give up at that point so it’s a charter for sloppy or prejudiced policing.

Getting a NIP means nothing if the police still refuse to take action. In my case Thames Valley Police have used NIPs to ensure they identified the driver but only with the intention of offering advice. When it comes to prosecution the police always accept the excuses of the driver despite the fact they are invariably demonstrably false or irrelevant. In a case where a clear and incontrovertible offence has taken place the excuses of not being in the public interest and of insufficient likelihood of a successful prosecution are wheeled out. The policy is clearly never to consider prosecution unless a collision involving injury has occurred although this is denied when the accusation is made.

I am a cyclist and enjoy being a daily target on London roads. I think given the savage cuts in police budgets, it’s diminishing returns for a dwindling force to chase up public reported RTOs. The Met received 245,000 notifiable offences last year of which “Other Notifiable Offences” such as yours totals 4,719. competing against 97,000 Theft & 73,000 Violence. The Met is down to about 32,000 officers so my proposal is they ignore public reports of traffic offences and focus resource on where it can have the most impact.

It’s a fair argument, but it has to be borne in mind that there is no single definition of “most impact”. Crime and public harm are both complex and multi-faceted things.

If “impact” was measured by reduction in fatalities, though, it’s worth referring to these figures from 2010 which show that while 319 fatalities occurred through assault and 354 occurred from injuries not known to be deliberate or accidental (ie there were somewhere between 319 and 673 fatalities through “real” crimes), 1,970 fatalities—probably around five times as many—resulted from road collisions.

It’s also worth asking difficult questions such as: What would you least like to happen: to have your car stolen, or for one of your children to be killed on the way home from school?

Naturally, that’s simplistic. But no more so than simply assuming that “real” crime is where all the “impact” is.

That all stems from the notion that deaths on the road are the results of “accidents” whereas assaults are deliberate acts. It takes quite a change of mindset to accept that accidents aren’t actually accidents but are acts of inattention, carelessness and at times pure crassness. I’m not sure why there are two offences – death by dangerous driving and death by careless driving – when driving carelessly is itself highly dangerous. Surely it’s just the same, or ought to be.

I’m saying the days of the police having discretional time are over, they now have to decide on what crimes or behaviour they must ignore and which ones to focus on whilst their force is progressively downsized. It’s better you write and meet with Surrey’s PCC Kevin Hurley as he holds the purse strings and sets Surrey’s policing priorities.

Rather than having armies of police sitting in the back office promptly processing people being offended on Twitter or looking at dvds of the latest near-miss NIP from CycleGaz, I’d rather they be thinking about how to proactively improve safety on Surrey’s roads, if PCC Hurley so directs them.

“Technically, a NIP must be served in order to prosecute any offence in the Road Traffic Offenders Act 1988 (RTOA1988); this is defined in the same act. However, there are exceptions:

where a collision occurs,

where a fixed penalty notice (FPN) is issued, where the offender’s details could not reasonably obtained in time, or where the offender has obstructed the obtaining of them.”

Was there not a collision?
It certainly looks like contact was made (I assume bar-end/Elbow Vs. Wingmirror) and in that case a NIP is not then required to be served from the quoted passage.

For me, I also experience enough bad driving that the bar is set quite high with respect to what I consider bad enough to act upon (beside maybe the odd gesture and obscenity at the time!). However any form of contact would fly way above my bar and I would expect action.
As an aside to this, surely she should have reported the collision to the police herself – her failure to do so in itself should trigger some action too.

The last bit about being ok to drive how you like as long as you don’t get caught by the police themselves or hit a cyclist made me chuckle. My local force refused to charge a driver that actually hit me, let alone just a close pass.

Because, AIUI, in the UK system it’s quite possible for two vehicles to collide with neither having done anything illegal. And if you haven’t broken a law – careless driving, drink driving, speeding, whatever – then there’s nothing to charge you with. The simple fact of driving your vehicle in such a way that you hit someone else, even if you seriously injure or kill them, is not in itself an offence. This disjunct between results and responsability is something that really needs to be changed.

I find the cycling on the video fine; others may disagree and I’m willing, just, to concede that some subjectivity might be applied with regard to this. I find the attempted assault on the cyclist using a car abhorrent; I don’t see how anyone could view it differently. I don’t understand how it isn’t criminal. The points about the corruption of the NIP process are well made but, to my mind, miss something more important. It doesn’t matter if you have 14 days to serve it, 28 days or 60 days. With officers like this, the end result is the same. If that’s their understanding of “to protect and to serve”, they’re in the wrong job. They really should just stay at home, they’re wasting their time going to work.

When I was nearly mown down last year by a driver who was using a mobile phone I was unaware of NIPs, and therefore didn’t rush the issue when my email report to the police elicited this automated response, which seems designed to make issuing a NIP in time impossible:

“This is to confirm that the message you recently sent to Northamptonshire Police has been forwarded to Control Room for attention.

If you do not receive a reply within 14 days, please forward this email to:

I later learned:
1. my report was not initially logged as an incident,
2. after two weeks when I followed it up I got the same message again, and another 2 weeks later it was sent to the safer roads team by mistake (who only deal with speed cameras – presumably the only safe bits of road in Northamptonshire)
3. I was then told that having seen the evidence the police intended to prosecute the mobile phone offence but that undertaking a stationary right-turning cyclist closely at 30mph was lawful
4. a DVD of the video evidence was required,
5. a written statement was required, written for me by a police officer (a cynic would say that the officer can include or exclude they key words required for a prosecution depending on their personal feelings towards the case)
6. after another 4 weeks I received a phone call saying that no further action would be taken due to the lack of a NIP being issued in time
7. apparently the video evidence of the driver holding the phone in hand whilst performing an undertaking manoeuver does not demonstrate that the mobile device was being used at the time, despite the initial officer stating in an email after viewing the video “I can clearly see the driver using what I believe is a mobile phone”. A later clarification stated “just holding the phone is not in itself an offence”.
8. The police officer who took my statement strongly intimated that Northamptonshire Police only prosecute mobile phone drivers where the witness was a police officer, although this was denied later, when I was told that at least one public report of mobile phone driving had resulted in prosecution in Northamptonshire in the last 12 months.
9. I was told that the driver’s version of events differed to mine, but they would not tell me what the driver said.
10. the driver was a government employee of some description, possibly police themselves
11. No other evidence was gathered, such as the publicly owned phone’s call log, witness statements from the oncoming drivers in the video, measurements of the road, speed/distance calculations from video etc…
12. in cases of dangerous driving or careless driving, Northamptonshire police consider the state to be the only victim, and therefore do not need to keep the person who submitted the report informed with the progression of the case
13. taking the time to complain to the police about their processes and priorities is a complete waste of time as they appear to be unable and unwilling to learn, change, or improve.

Whilst I understand that the police are being cut more than ever, surely this is all the more reason to use evidence submitted by the public. A basic level of service is lacking in Northampton Police, and I strongly suspect that this is more so if your chosen method of getting around is different to theirs. You might well ask, what would I expect them to do in such a case, and the answer would be to at least answer within two weeks.

Go straight to the organ-grinder, your Police and Crime Commissioner for Northamptonshire Police is Adam Simmonds and he was elected into this role by local residents. On his web-site he says “I’m here to change things – to bring down violent crime, to ensure that victims of crime are put first and to work at making our policing the brightest and the best.”

Why not contact him and give him feedback on his Police Service and the process they used to handle your NIP? You can make his day on commissioner@northantspcc.pnn.police.uk or better still phone him on 01604 888113. Check out page 19 of his Police & Crime Plan which discusses his commitment to have “Safer Roads” through “Cultural Change” of road users.

Is there anything equivalent to this ‘NIP’ with regard to non-motoring offences?

(It would actually make me feel better if it turns out that this odd system applied to offences across the board, rather than being a special get-out-clause only for those who break the law while in cars – its painful constantly getting the message that as a non-driver you are a second-class citizen).

The “loopholes” link, just before the comments, kind of sums up the problem faced by anybody wanting to improve road safety – i.e. arrogant people using their “knowledge” of the law to get away with having a total disregard for said law.